Cugini v. Ventetuolo

• Court: Court of Appeals for the First Circuit
• Decided: June 26, 1992
• Docket: 92-1092
• Status: Published

Opinion

USCA1 Opinion

          June 26, 1992         [NOT FOR PUBLICATION]

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No. 92-1092 

                                   MARK R. CUGINI,

                                 Plaintiff-Appellant,

                                          v.

                            DONALD R. VENTETUOLO, ET AL.,

                                Defendants-Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
                                     ____________________
                              and Selya, Circuit Judge.
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                                 ____________________

            Mark R. Cugini on brief pro se.
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            Michael B. Grant on brief for appellees.
            ________________

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Per Curiam.  Appellant  Mark R. Cugini appeals from
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            the dismissal of  his complaint  in which he  sought to  hold

            various  officials   of  the  Rhode   Island  Department   of

            Corrections (DOC)  in contempt of the  consent decree entered

            in  Morris  v.  Travisono,  310  F.Supp.  857  (D.R.I.  1970)
                ______      _________

            (referred to  as  the  Morris  Rules).   Cugini  amended  his

            complaint to state a  cause of action for deprivation  of his

            civil rights and requested damages and an injunction.  Cugini

            claims that his rights  to due process and equal  protection,

            and  his right to be  free from cruel  and unusual punishment

            were violated when  he was denied a change  in classification

            status.   As a result  of this, Cugini states,  he was denied

            parole.

                      Because  Cugini appears  pro  se,  we construe  his
                                               ___  __

            complaint  liberally.   See  Haines v.  Kerner, 404  U.S. 519
                                    ___  ______     ______

            (1972) (per  curiam); Ferranti  v. Moran,  618 F.2d 888,  890
                                  ________     _____

            (1st  Cir.  1980).   We  also take  as true  all  of Cugini's

            factual   allegations  and  draw  from  them  all  reasonable

            inferences.   Rodi v. Ventetuolo,  941 F.2d 22,  23 (1st Cir.
                          ____    __________

            1991).

                                      I.  FACTS

                      Cugini's pleadings reveal  the following series  of

            events.   In February  1985, Cugini began  serving concurrent

            sentences of three and twelve years (Cugini does  not specify

            the crime  or crimes  for which  he was  convicted).   He was

classified as  a medium security  risk.  As such,  he was not

            entitled to  participate  in work-release  programs.   Cugini

            first appeared before  the Parole Board on May 25,  1989.  At

            this  time, parole was denied  on the ground  that Cugini had

            not yet moved  "through the prison system."   This apparently

            refers  to the  fact  that Cugini  had  not attained  minimum

            security status  and the  accompanying eligibility  for work-

            release programs.

                      On  June  27,  1989,  Cugini  appeared  before  the

            Classification  Board.   At  this  time, the  Board  denied a

            change to minimum status.  Accordingly, Cugini was ineligible

            for work release.  The Board based its decision on the nature

            of the crime and a minor institutional infraction.   However,

            in November 1989, the Classification Board recommended such a

            change.   Nonetheless, the Director  of the DOC  rejected the

            Board's  recommendation on  the basis  of the  nature  of the

            crime.   When Cugini appeared before the Parole Board for the

            second  time on  November 20,  1989, parole again  was denied

            because Cugini had not moved through the system.

                      In February  and  August 1990,  the  Classification

            Board  again  recommended  that  Cugini  be  reclassified  to

            minimum status.  On both occasions, the Director rejected the

            Board's recommendation and denied a change in classification.

            On  November 21, 1990, the Parole Board denied parole for the

            same  reason   as  before.     Despite  the   Parole  Board's

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requirement that  Cugini begin  work release before  it would

            consider  him parole-eligible,  the Classification  Board, in

            December  1990,  refused  to change  Cugini's  classification

            status based solely on the nature of his crime.

                      Cugini asserts  that the  denial of minimum  status

            and work-release status was not in compliance with the Morris

            Rules,  that other  similarly situated  inmates were  granted

            such status,  and that the lack  of sufficient rehabilitation

            programs for  medium status  prisoners relegated Cugini  to a

            vegetative  state   which  amounted  to   cruel  and  unusual

            punishment.    Cugini first  argues  that the  classification

            portion of the Morris Rules  creates a liberty interest which

            the United States Constitution protects.  Thus, he concludes,

            by  considering a criterion --  the nature of  the offense --

            that is  not among the  factors the  Classification Board  is

            permitted to  examine by  regulation, the Board  violated his

            due  process rights.    Also, Cugini  argues  that he  has  a

            liberty interest in being  able to pursue parole and  that by

            denying him  a change  in classification, the  Classification

            Board deprived  him of  this right.   Finally, Cugini  states

            that  due to the mandatory language of the parole statute and

            the classification regulations,  he has "a right  protectible

            under the constitution .  . . to a classification  which will

            enhance  his rehabilitation that being . . . to be classified

            to a lesser security [and] minimum/work release."

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II.  DISCUSSION

                      A.  Due Process
                          ___________

                      It  is important to note that this is not the usual

            case concerning due  process.  Cugini does  not complain that

            procedures such as notice and hearing were lacking.   Rather,

            he is arguing that otherwise adequate procedures were applied

            in an impermissible way.   His case reduces  to a claim  that

            the Classification  Board and  the Director erred  in resting

            the decision not  to reclassify  Cugini on the  basis of  the

            nature of his crime.

                      For  this  proposition,  Cugini  refers  to  a  DOC

            Administrative Policy Statement, No.  1.19.01, Part VI, which

            provides, in relevant part, as follows:

                      C.   If    an   inmate    is   being
                           considered  for  transfer  from
                           Medium to Minimum Security, the
                           following   criteria  will   be
                           utilized:

                           1.   If he  has a sentence
                                not in  excess of ten
                                (10)  years,  he must
                                have served three (3)
                                months in  Medium and
                                have served at  least
                                one-tenth  (1/10)  of
                                his total sentence.

                           2.   If he has over  a ten
                                (10)   year  sentence
                                (not lifers with more
                                than  a  thirty  (30)
                                year   sentence),  he
                                must have served  six
                                (6) months  in Medium

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Security    and    be
                                within     four   (4)
                                years   or  less   of
                                parole eligibility.
                                       . . . .
             
                           4.   If his program  needs
                                can be met in Minimum
                                Security.

                           5.   He      must     have
                                exhibited    positive
                                attitudes     towards
                                institution rules and
                                regulations  and  has
                                shown    no   serious
                                behavioral adjustment
                                problems  during  his
                                time in Medium.

            Cugini argues that the use of the word "will" requires prison

            officials to consider only the  listed factors.  The reliance

            on the nature of the crime for which he was convicted, Cugini

            maintains, violates his liberty interest in attaining parole.

                      We need  not address  whether, and to  what extent,

            Cugini's  due process  rights  were violated  to resolve  his

            claim.  Attached to Policy No. 1.19.01 is a document entitled

            "Classification/Re-Classification    Criteria:        Revised

            Explanation  of Classification  Criteria."    This  statement

            "further  defines various  criteria and  terminology used  in

            this  policy  statement."     Item  IV  refers  to  pertinent

            sentencing data and list  as a relevant inquiry "what  is his

            crime(s)?"    Thus,  contrary  to  Cugini's   assertion,  the

            Classification  Board and the Director did  not go beyond the

            limits set forth in this policy statement.

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Indeed, even if the Classification  Board had erred

            in applying  the classification standards, we  have held that

            "it will be  the unusual case, involving  marked departure by

            state  officials  therefrom,  which  might  give  rise  to  a

            supportable claim of constitutional deprivation."  Palmigiano
                                                               __________

            v. Mullen, 491 F.2d 978, 980 (1st Cir. 1974).  To make such a
               ______

            case,  an   inmate  would  need  to   show  "with  convincing

            particularity  some  likelihood  either  that  the defendants

            disregarded   Morris    procedures"   or   else    that   his
                          ______

            classification decision was made "for reasons utterly  beyond

            the  scope of any legitimate authority."  Id.  Cugini's claim
                                                      ___

            under this standard necessarily fails.

                      B.  Equal Protection
                          ________________

                      Cugini's assertion that inmates with  worse records

            than his and inmates with similar records were  given minimum

            security classification is conclusory  in nature.  Aside from

            this bare  allegation,  there is  nothing  in the  record  to

            support  this claim.  See Slotnick v. Staviskey, 560 F.2d 31,
                                  ___ ________    _________

            33  (1st Cir. 1977) (pro se complaint cannot survive a motion
                                 ___ __

            to  dismiss unless  it refers  to material  facts to  back up

            allegations), cert.  denied, 434 U.S.  1077 (1978).   We have
                          _____________

            made  clear  that  despite  the  liberal  reading  of  pro se
                                                                   ___ __

            pleadings  required by  Haines, even  pro se  plaintiffs must
                                    ______        ___ __

            plead  specific  facts  concerning  claims  of  civil  rights

            violations.  See Glaros v. Perse, 628 F.2d 679, 684 (1st Cir.
                         ___ ______    _____

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1980).  If supportive facts are missing, it is  not the place

            of  the courts  to supply them.   Hurney v.  Carver, 602 F.2d
                                              ______     ______

            993, 995 (1st Cir. 1979).

                      C.  Eighth Amendment
                          ________________

                      This claim does not meet  the standard set forth in

            Wilson v. Seiter, 111  S.Ct. 2321 (1991).  The  Supreme Court
            ______    ______

            held in Seiter that to make out an Eighth Amendment claim  an
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            inmate  must  establish  that  prison  officials  acted  with

            deliberate  indifference.    Id.  at  2326-27.    "Deliberate
                                         ___

            indifference is  conduct that offends  evolving standards  of

            decency  in a civilized  country."  DesRosiers  v. Moran, 949
                                                __________     _____

            F.2d 15, 18 (1st  Cir. 1991).  Cugini's assertion  that after

            taking  advantage of  all  the  rehabilitation and  education

            services available to medium security  inmates he was left to

            exist  in  a  "vegetative  state"  falls  far  short of  this

            standard.  See  Rodi, 942  F.2d at 29  n.8 (actionable  claim
                       ___  ____

            under  Eighth  Amendment  not   stated  by  bare  claim  that

            prisoner's  return  to  maximum security  after  disciplinary

            segregation caused him harm).

                                      CONCLUSION
                                      __________

                      Treating  Cugini's   complaint  as  a   motion  for

            contempt, it is  plain that  the complaint fails  to state  a

            claim  upon which  relief may  be granted  -- simply,  prison

            officials   did   not   disregard   the   Morris   Rules   or

            Administrative Policy Statement  No. 1.19.01.   Even treating

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Cugini's complaint as a 42 U.S.C.   1983 action,  he fails to

            state a claim for the reasons stated above.

                      Accordingly, the judgment of the district court  is

            affirmed.
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